Category: Bombay High Court Declaratory Suit

The cross-examination of the Plaintiff, Syedna Taher Fakhruddin Saheb (TUS) continued on the 13th, 14th, and 16th of February 2018 in the Hon’ble Bombay High Court.

On 13th February, Senior Counsel Mr. Iqbal Chagla for the Defendant, Shehzada Mufaddal Saifuddin, asked the Plaintiff about a treatise of the 51st Dai which states that Nass should be in the presence of “people” from the Dawat. The Plaintiff responded that the translated word “people” is a general meaning and the Arabic word used in the text is ‘jamaat’. He further said that the Prophet Mohammed SA had himself said that “a single believer is a jamaat.”

In response to a question from Mr. Chagla on whether Nass of succession should be explicit, the Plaintiff responded that conferment of Nass must be by a direct statement or clear indication, as is explained in the Dawoodi Bohra misaaq (oath).

On 14th February, Mr. Chagla asked the Plaintiff whether he accepted that the compilation listing Ismaili treatises on law, doctrine and history, authored by Ismail bin Abdurrasool al-Ujjaini (al-Majdu) was an authoritative compilation. The Plaintiff replied that this compilation should not be regarded as fully authoritative, as the author of this compilation, known in the community as the renegade al-Majdu, revolted against the 40th Dai.

Mr. Chagla sought to ask further questions on al-Majdu’s compilation which the Hon’ble Justice Patel disallowed on the grounds that the Defendant would first have to prove that al-Majdu’s compilation was authoritative in the community.

On 16th February, the Plaintiff produced a video recording of the 52nd Dai Syedna Mohammed Burhanuddin Saheb RA, in which the 52nd Dai said that “no conceptions of Majdu should be adopted” and that any works authored by al-Majdu should be treated with extreme caution.

Mr. Chagla produced an audio recording of a sermon of the 51st Dai Syedna Taher Saifuddin Saheb RA in which the Defendant claims that the 51st Dai spoke of a requirement of witnesses to nass. The Plaintiff produced an enhanced (for clarity) version of the same recording and said it is clear that no requirement of witnesses is discussed. In fact, he said, the 51st Dai does not even mention witnesses (“shaahido ne bhi”), rather he mentions writings (“kaaghazo ma bhi”). The Hon’ble Justice Patel noted this crucial difference and stated that it would have to be examined separately.

Mr. Chagla asked the Plaintiff if there were any proofs of the 27th Dai’s rightful succession against the rival claimant Sulayman, other than the fact that he was the Mazoon of the 26th Dai. The Plaintiff replied that the 25th Dai had stated that the Imam appeared in a vision before him in a dream and instructed him to appoint both “the two Daud’s” the 26th and the 27th Dais after him. The Plaintiff also said that when the 26th Dai appointed the 27th Dai as Mansoos, some people objected. The 26th Dai responded to the objectors that in fact it is was his predecessor the 25th Dai who had instructed him (26th Dai) to appoint his successor Syedna Daud bin Qutubshah as the 27th Dai.

The Plaintiff also noted that the 51st Dai in his Risalat states that Sulayman accepted the succession of Syedna Qutubshah (the 27th Dai) by performing Sajda to him, before he rebelled a few years later.

(The Defendant, Shahzada Mufaddal Saifuddin, has prostrated before the Original Plaintiff Syedna Khuzaima Qutbuddin RA, and video recordings of this have been submitted in evidence.)

The Hon’ble Justice Patel has scheduled the further cross-examination of the Plaintiff on 21st and 22nd of March 2018 and if required on the 10th, 11th and 13th April 2018.

The recording of the evidence of His Holiness Syedna Taher Fakhruddin Saheb TUS, the Plaintiff in Suit 337/2014, which had been originally filed by his predecessor His Holiness the Late Syedna Khuzaima Qutbuddin Saheb RA (the Original Plaintiff) in the Hon’ble Bombay High Court, continued on the 8th, 9th and 12th of January 2018, presided over by the Hon’ble Justice Gautam Patel.

Mr. Chagla asked various questions on the veracity of the Dawoodi Bohra history text Muntaza al-Akhbar. The Plaintiff responded that “mostly, it is” correct but explained that there were a number of inaccuracies, some of which were set out in endnotes to the text published by Aljamea-tus-Saifiyah.

Mr. Chagla asked for what reasons the Plaintiff did not believe that Nass had been performed on the Defendant. The Plaintiff responded that he had witnessed the Defendant doing sajda (prostration) to his father (the Original Plaintiff) for many years, thereby the Defendant himself accepted that the Original Plaintiff was appointed as Mansoos and would succeed the 52nd Dai.

Among his answers to other questions asked by Mr. Chagla, the Plaintiff highlighted two instances where the 52nd Dai His Holiness Syedna Mohammed Burhanuddin Saheb had personally disapproved of the conduct of the Defendant towards the Original Plaintiff. The first being when, in breach of protocol, the Defendant and his brothers tried to come ahead of the Original Plaintiff to embrace the 52nd Dai at the Sermon of his 100th centenary birthday, the 52nd Dai stopped them from doing so. In the second instance the 52nd Dai personally told the Plaintiff and his sister that he had told his children to stop talking about the Original Plaintiff in disrespectful ways and to offer the same respect to the Original Plaintiff as they had done before.

These instances were given in response to Mr. Chagla’s question that had the 52nd Dai ever disapproved of the Defendant’s conduct towards the Original Plaintiff.

The Hon’ble Justice Patel has scheduled the further cross-examination of the Plaintiff on 13th, 14th, and 16th of February 2018.

The recording of the evidence of His Holiness Syedna Taher Fakhruddin Saheb (TUS), the Plaintiff in Suit 337/2014, which had been originally filed by his predecessor His Holiness the Late Syedna Khuzaima Qutbuddin Saheb RA in the Hon’ble Bombay High Court, began on the 8th of December 2017 at 12:00pm in the historic Courtroom No. 46, presided over by the Hon’ble Justice Gautam Patel.

The Plaintiff first took the oath, and prayed Bismillah.

The Plaintiff was first examined by his Cousel Mr. Anand Desai of DSK Legal. The Hon’ble Justice Gautam Patel also asked the Plaintiff several questions.

Mr. Desai asked the Plaintiff to explain the origins of the Dawoodi Bohra community. The Plaintiff replied that Dawoodi Bohras are Shia Ismaili Muslims, followers of Imam Ismail AS.. Syedna Saheb explained that Ismaili Shia’s believe that nass of succession, once conferred, cannot be revoked, changed, superseded or replaced and that is a core Dawoodi Bohra theological doctrine. This was the basic difference in belief from the followers of Musa Kazim, who believed that the nass on Ismail was revoked, and nass was then conferred on Musa Kazim by Imam Jafer us-Sadiq.

(An issue is of central importance in this succession case is that the defendant, Shehzada Mufaddal Saifuddin, is saying that nass can be revoked, superseded, replaced or changed.)

Mr. Desai asked the Plaintiff about the sources of doctrinal knowledge in the Dawoodi Bohra community. The Plaintiff answered that in the hierarchy of texts, the highest would be the Holy Qur’an, the hadith of Mohammed Rasulullah SA, and the sayings of the Imams. At the same level are books of the Dais. The Plaintiff explained that the books are like notes, and it is the oral interpretations provided by the Dais that are considered the highest level, as they are the authentic interpretations of the texts.

The Plaintiff said that he is also relying on oral interpretations given by the 51st Dai His Holiness the Late Syedna Taher Saifuddin Saheb RA and the 52nd Dai His Holiness the Late Syedna Mohammed Burhanuddin Saheb RA to establish issues of belief and doctrine in this case.

The Hon’ble Justice Gautam Patel asked the Plaintiff whether it is important or necessary for others to know of the conferment of nass at or around the time when it is conferred. The Plaintiff replied that it is not compulsory or necessary, and that there are historical precedents of keeping such a conferment private, including to prevent opposing forces from attempting a disruption in the chosen order of Dais.

Mr. Desai asked the Plaintiff to provide an explanation for the case of private nass, where the nass is communicated only from the appointer to the appointed. The Plaintiff answered that not only is this possible, but gave several historical examples of when this has been previously done. The Plaintiff also stated that he has personally heard the 52nd Dai on multiple occasions say that private nass is valid and there are audio recordings of the 51st Dai saying this.

Mr. Desai asked the Plaintiff to explain the case where a mansoos (successor) dies before he assumes office as Dai. The Plaintiff explained that once nass is conferred, the mansoos has already reached the high station in this world and will attain the same high station in heaven. The Dai would anoint a new mansoos by conferring nass on him in case his mansoos passes away during the lifetime of the Dai. In support of this, among other examples, the Plaintiff quoted the Holy Quran (Ch. 19: Verse 53: 53rd verse of Surat Maryam) which states that Prophet Haroon (Aaron), the mansoos (appointed successor) of Prophet Musa (Moses), is referred to as having the same station as Musa himself, that of Nabi (Prophet). Another mansoos was appointed after Prophet Haroon passed away.

Mr. Desai asked the Plaintiff what is the difference between Sajda (prostration) of worship and Sajda to an Imam or his Dai. The Plaintiff replied that the Sajda for worship can be done only to Allah (God); Sajda to an Imam or his Dai is also denoted as ‘taqbeel al ard’ (meaning kissing of the ground) and is the highest form of respect.

(This point is important because the Plaintiff’s case is that sajda is only done to an Imam, Imam-to-be, his Dai or Dai-to-be. The Defendant and his brothers used to perform Sajda to the Original Plaintiff Syedna Khuzaima Qutbuddin Saheb.)

Mr. Desai also asked whether there are any expressions used to jointly refer to the Dai and the Mazoon. The Plaintiff, illustratively, named the following:

The Mazoon is the right hand of the Dai and jointly takes up the work of the Dawat

The Dai and the Mazoon are the spiritual parents of the people of Dawat

The Mazoon is the true friend of the Dai and witness upon the believers

The Plaintiff also offered testimony about the photos taken when Syedna Burhanuddin RA viewed the handwritten misaal (letter) written by the 51st Dai Syedna Taher Saifuddin Saheb RA to Syedna Khuzaima Qutbuddin Saheb RA. Syedna Burhanuddin and Syedna Qutbuddin are visible in the photographs and Syedna Fakhruddin took the photographs. The misaal has clear indications by the 51st Dai that the Original Plaintiff would be the 53rd Dai.

The Hon’ble Justice Gautam Patel asked the Plaintiff the reasons for wanting to rely on audio and video recordings of the 51st and 52nd Dais sermons. The Plaintiff replied that he is relying on these as they are the authoritative pronouncements by the 51st Dai and 52nd Dai on several key doctrinal beliefs, including:

There can be a private conferment of nass

That the mansoos can testify for himself and in favour of himself to show that the Dai conferred nass on him

That a nass can be conferred with an indication

That a nass once conferred cannot be changed, revoked or superseded

To show the high credibility and station of the rank of Mazoon

The examination in chief concluded and Senior Counsel Mr. Iqbal Chagla for the defendant Shehzada Mufaddal Saifuddin, began his cross-examination.

Mr. Chagla asked many questions about the Plaintiff’s personal background, inquiring in detail into his educational background, places of residence, business dealings, and also other family related matters.

Mr. Chagla asked the Plaintiff about the special knowledge and Dawat secrets bestowed upon him by the Original Plaintiff, inquiring into their purpose. He replied that the reason for bestowing such knowledge was so that he “could serve the Dawat and the Dai”. Mr. Chagla asked how the Original Plaintiff expected the Plaintiff to serve Dawat and the Dai. He replied: “In the way he had served them, with sincerity and devotion.”

Mr. Chagla questioned the Plaintiff about the role of the Mazoon in settling disputes relating to the identity of the true Dai, and Syedna Fakhruddin indicated that in previous disputes, the word of the Mazoon was taken as authoritative in determining the true Dai.

Syedna Fakhruddin was asked when he believed that his father, the 53rd Dai Syedna Khuzaima Qutbuddin Saheb was the successor to the 52nd Dai. He replied that it was a progression from childhood and the actions of the 52nd Dai’s children, including the defendant, all of whom offered Sajda to Syedna Qutbuddin, and jointly referred to the 52nd Dai and Syedna Qutbuddin Saheb as “Bewe Moula” (Both Moula), contributed to this belief.

Mr. Chagla also entered into evidence a newspaper article that the Plaintiff had brought in his Plaint, but which was not earlier admitted by the Defendant. This newspaper article quoted the former Chief Justice of India, the Hon’ble Justice Aziz M. Ahmadi saying that “I examined the documents and believe that Syedna Qutbuddin’s stand of the 53rd Dai is principled”. The Hon’ble Justice Patel took this document on record as the Defendant’s exhibit.

The Hon’ble Justice Patel has scheduled the further cross-examination of the Plaintiff on 8th, 9th, and 12th of January 2018.

The Hon’ble Justice Gautam Patel of the Bombay High Court allowed Chamber Summons No. 1290 of 2016 in Suit No. 337 of 2014, whereby His Holiness Syedna Taher Fakhruddin Saheb TUS has been substituted as the Plaintiff after the sad demise of the Original Plaintiff His Holiness the Late Syedna Khuzaima Qutbuddin RA. Syedna Taher Fakhruddin Saheb will now continue the suit against Shehzada Mufaddal Saifuddin to establish that Syedna Fakhruddin Saheb is the 54th Dai al-Mutlaq of the Dawoodi Bohra Community after establishing that Syedna Khuzaima Qutbuddin was the 53rd Dai al-Mutlaq. Shehzada Mufaddal Saifuddin and his respresentatives had claimed the suit had abated and that he had won the Suit after the sad demise of Syedna Khuziama Qutbuddin. The Hon’ble High Court has also fixed a timetable for carrying out the amendments, the Defendant to file an additional written statement, and has listed the Succesion Suit for directions in May 2017 itself. This is a very positive step towards resolving the issue of the rightful successor to the 52nd Dai His Holiness the Late Syedna Mohammed Burhanuddin RA and for the future of the Dawoodi Bohra Community.

The date for hearing the Chamber Summons filed by His Holiness Syedna Taher Fakhruddin TUS, in the Hon’ble Bombay High Court has been fixed for 7th December 2016 by the Hon’ble Justice K. R. Shriram.

The Chamber Summons seeks the substitution of Syedna Taher Fakhruddin as the Plaintiff in the Suit filed by his predecessor His Holiness the Late Syedna Khuzaima Qutbuddin RA against Shehzada Mufaddal Saifuddin.

The Chamber Summons filed by His Holiness Syedna Taher Fakhruddin TUS was listed to be heard by the Hon’ble Bombay High Court on October 19, 2016. The matter did not get heard for paucity of time during the day, and on October 20, 2016 our advocates mentioned the matter before the Hon’ble Bombay High Court, when the Hon’ble Court directed that the chamber summons be listed for Directions on November 15, 2016, after the Diwali vacation.

The date for hearing the Chamber Summons filed by His Holiness Syedna Taher Fakhruddin TUS, in the Hon’ble Bombay Court has been fixed for 19th October 2016 by the Hon’ble Justice K. R. Shriram.

The Chamber Summons seeks the substitution of Syedna Taher Fakhruddin as the Plaintiff in the Suit filed by his predecessor His Holiness the Late Syedna Khuzaima Qutbuddin RA against Shehzada Mufaddal Saifuddin.

His Holiness Syedna Taher Fakhruddin TUS, the 54th Dai al-Mutlaq has filed a Chamber Summons on the 27th of June 2016 in the Hon’ble High Court of Bombay to be substituted as plaintiff in the Suit filed by his predecessor His Holiness the Late Syedna Khuzaima Qutbuddin RA, the 53rd Dai al-Mutlaq against Shehzada Mufaddal Saifuddin.

Syedna Qutbuddin sadly passed away to his heavenly abode on 30th March 2016 in California, USA. Before his passing Syedna Qutbuddin had appointed his eldest son Syedna Taher Fakhruddin as his Mansoos (successor) on 8th November 2015.

Prior to filing the Suit in Hon’ble High Court the Late Syedna Khuzaima Qutbuddin RA had made repeated attempts to resolve this unfortunate issue internally within the Community, inviting Shehzada Mufaddal Saifuddin to a debate to establish the truthfulness of the nass conferred on him by His Holiness the Late Syedna Mohammed Burhanuddin Saheb RA , the 52nd Dai al-Mutlaq. Shehzada Mufaddal Saifuddin did not respond to that call. Syedna Taher Fakhruddin also invited Shehzada Mufaddal Saifuddin to a debate according to the precedents of the community, and in the interests of resolving this matter, which affects the whole community. But Shehzada Mufaddal Saifuddin has not responded to that invitation either.

To ensure that the path set by the previous Dai al-Mutlaq’s is followed, and the Community is not torn asunder by false claimants, and having full faith in the Indian Judiciary, Syedna Fakhruddin has approached the Hon’ble High Court for appropriate remedies.

In a statement Syedna Fakhruddin said “Since Shehzada Mufaddal Saifuddin is unwilling to resolve the matter internally through a debate to establish the truth, we have approached the Hon’ble Court, in which we have full faith, with evidence that will expose the falsehoods being perpetuated by Shehzada Mufaddal Saifuddin. I will continue the fight that my revered father Syedna Qutbuddin started, for truth, justice, and the future and well-being of the Dawoodi Bohra community”

Note:
The Suit 337 of 2014 was filed by His Holiness Syedna Khuzaima Qutbuddin Saheb against Shehzada Mufaddal Saifuddin in the Hon’ble High Court of Bombay in April 2014. Cross-examination of Syedna Qutbuddin started on 27th April 2015 and was ongoing when His Holiness sadly passed away.

It is hereby clarified that the Hon’ble High Court has not passed any order declaring that the suit filed by Syedna Qutbuddin has abated. The Hon`ble High Court has merely cancelled the dates which were reserved for hearing of the suit.

As per the legal advice received by us, the scheme of the law is that the legal representative of the original plaintiff (in our case the legal representative of Syedna Qutbuddin RA) can make an application to be brought on record as plaintiff within 90 days. The law provides that the suit abates only on the expiry of the 90 days from the date of the death of Syedna Qutbuddin RA if no such application is made.